Citation Nr: 9928866
Decision Date: 10/06/99 Archive Date: 10/15/99
DOCKET NO. 96-46 938 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
Entitlement to an increased evaluation for degenerative joint
disease of the cervical spine , rated 10 percent disabling
and to an evaluation in excess of 10 percent for a left ankle
disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
R. A. Caffery, Counsel
INTRODUCTION
The veteran had active service from March 1984 to April 1996.
By rating action dated in May 1996, the Department of
Veterans Affairs (VA), among other things, granted service
connection for a cervical spine disability, rated 10 percent
disabling, effective from April 21, 1996. In an August 1996
rating action, the VA confirmed and continued the 10 percent
evaluation for the cervical spine disability and granted
service connection and assigned a noncompensable evaluation
for a left ankle disability. The veteran appealed for higher
evaluations for those conditions. In April 1997, the
evaluation for the left ankle condition was increased to
10 percent. The 10 percent rating for the cervical spine
disability was confirmed and continued.
Service connection is also in effect for a postoperative
disability of the left shoulder, rated as 10 percent
disabling; residuals of a left hand fracture, rated as 10
percent disabling; and residuals of trauma to the right eye,
rated as noncompensable. The ratings for these disabilities
have not been questioned and are not part of this appeal.
The case was initially before the Board of Veterans' Appeals
(Board) in July 1998, when it was remanded for further
action. Additional VA outpatient treatment records were
obtained and the veteran was afforded VA orthopedic and
neurological examinations in March 1999. In April 1999, the
veteran was provided a supplemental statement of the case by
the VA Regional Office, Jackson, Mississippi. The case is
again before the Board for further appellate consideration.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
regional office.
2. The veteran has chronic paresthesia, decreased sensation
and pain involving several dermatomes of the cervical spine,
the left shoulder and the left arm. Orthopedic examinations
have shown only slight limitation of motion, and neurologic
examinations have shown minor neurologic involvement.
3. The veteran is subject to periods of inflammation of the
left arm, shoulder and neck which cause severe pain and
results in some functional impairment, particularly for hard
physical exertion. Overall, his cervical spine condition is
productive of moderate disability.
4. The veteran has a full range of motion of his left ankle.
There is no swelling or effusion involving the ankle. His
complaints of pain and tenderness establish the presence of a
slight functional impairment for vocational activity
involving prolonged walking or standing.
CONCLUSIONS OF LAW
1. Entitlement to an evaluation of 20 percent for the
veteran's cervical spine disability is warranted. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Code 5293
(1998).
2. Entitlement to an evaluation in excess of 10 percent for
the veteran's left ankle disability is not warranted.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Code
5271 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board notes that it has found the veteran's claims are
"well grounded" within the meaning of 38 U.S.C.A. § 5107(a);
effective on and after September 1, 1989. That is, the Board
finds that he has presented claims which are plausible. The
Board is also satisfied that all relevant facts regarding the
claims have been properly developed.
I. Background
Service department Medical Evaluation Board proceedings dated
in November 1995 reflect that the veteran underwent surgery
for a left shoulder condition in February 1995.
Postoperatively, he developed left-sided neck pain that
radiated into the arm, forearm and fingers. Cervical spine
films showed findings consistent with mild degenerative disc
disease at C4-C5. The veteran underwent a cervical spine
magnetic resonance imaging in July 1995 that showed a diffuse
C3-C4 disc bulge without evidence of neural impingement.
When the veteran was afforded a VA general examination in
June 1996, various findings were made regarding his cervical
spine and left ankle. An X-ray study of the left ankle
showed minimal degenerative changes.
The veteran was afforded VA examinations in December 1996.
He indicated that he had a TENS unit that he used daily for
his neck condition and a heating pad that he used for his
neck and left ankle. He also had a neck brace that he used
as needed for pain and used balm. He complained of
intermittent pain and weakness of the left ankle. On
examination, the left ankle was very tender to palpation. It
was indicated that he was not able to walk on his toes or
heels due to pain in the left ankle. Range of motion of the
left ankle was full, although the veteran complained of pain
on motion.
The veteran reported constant pain in his neck with the pain
going down the left side of his neck and into his left
shoulder and down to his lower back. On examination, there
was tenderness to palpation of the cervical spine. There was
some limitation of motion of the cervical spine. It was
indicated that an X-ray of the cervical spine in September
1996 had shown minimal degenerative changes and/or cervical
muscle spasm.
During the course of a hearing conducted at the regional
office in March 1997, the veteran stated that his neck was
weak and that he had muscle spasms involving his neck. He
was receiving physical therapy and had also tried traction.
His left ankle felt unstable. He had pain and weakness
involving the ankle. He wore a brace on the ankle. He also
had problems with swelling of the ankle.
VA outpatient treatment records were later received by the
regional office reflecting that the veteran was observed and
treated on several occasions for various conditions from
February to July 1997. He was not treated for the conditions
at issue.
The veteran was afforded a VA orthopedic examination in March
1999. It was indicated that he had had surgery on the left
shoulder in 1995 and the day after the operation, he
developed left-sided neck pain radiating to the left hand
with numbness on the radial side of the left hand. The pain
had recurred intermittently since that time and was
aggravated by cold weather. He had been treated with
nonsteroidal anti-inflammatory drugs, but those upset his
stomach and his medication had been changed in order to
protect his stomach. He reported some pain in the ankle with
prolonged standing.
On physical examination, the veteran held his head in a
normal attitude. Extension of the cervical spine was to
40 degrees causing pain in the anterior portion of the neck.
Forward flexion was to 50 degrees. Right and left lateral
bending were to 45 degrees and right and left lateral
rotation were to 70 degrees. Axial compression caused pain.
Jugular compression caused pain. The veteran was tender over
the spinous process of C6. Deep tendon reflexes were active
and equal in the biceps and triceps tendons. The examiner
could detect no motor weakness. There was no evidence of
atrophy present. He had some diminished sensation in the
dorsal aspect of the first web space of the left hand.
On examination of the left ankle, the veteran had 20 degrees
of dorsiflexion and 45 degrees of plantar flexion. He had no
swelling or effusion in the left ankle. His anterior drawer
test was negative. The examiner could detect no talar tilt
with varus or valgus stress. He complained of tenderness
over all of the synovial reflections of the ankle. He had
30 degrees of inversion and 50 degrees of eversion in the
hindfoot.
An X-ray study of the cervical spine showed some ossification
of the anterior longitudinal ligament at its attachment to
the anteroinferior corner of C4. He had no narrowing of that
disc space or any other. X-ray study of the ankle showed
changes compatible with traumatic arthritis.
An impression was made of mild traumatic arthritis of the
left ankle. The examiner stated that aside from the small
area of ossification in the anterior longitudinal ligament
between C4-C5, he could find no objective evidence of organic
pathology to explain the veteran's neck pain. He noted that
a magnetic resonance imaging in July 1995 had showed diffuse
C3-C4 disc bulge without evidence of neural impingement. He
could find no evidence of degenerative disc disease at C4-C5
on the current X-rays. He did not consider the ossification
or the anterior longitudinal ligament as evidence of
degenerative disc disease.
As far as limitation of activities was concerned, the
examiner believed the veteran might sustain pain in the ankle
in a job that required prolonged walking or prolonged
standing. He stated that the veteran's weight bearing should
probably be limited to 4 out of the 8 hours in broken
intervals. It was not feasible to estimate the additional
range of motion loss due to pain on use or during a flareup.
The X-ray evidence would support the veteran's claim for pain
in the ankle. The clinical evidence did not support
significant neck pain. Fatigue was a vague, subjective
complaint that could not be measured. Coordination was a
function of the central nervous system and not the neck or
the ankle disability. He stated that the veteran had no loss
of motion [of the ankle] due to weakness, fatigue or
incoordination.
The veteran was also afforded a VA neurological examination
in March 1999. He related that he had awakened from a
surgical procedure with problems on the left side of his neck
and left shoulder and arm that had not gone away. The
symptoms had persisted despite physical therapy, other
supportive measures and symptomatic medications. He
complained of constant pain on the left side of his neck and
in the left shoulder with radiating pain, numbness and
tingling going from the left shoulder into his left arm,
forearm and first two digits of his left hand. He was
basically left-handed and that had significantly interfered
with his ability to make a living. All types of physical
activity aggravated his discomfort. He was currently
attempting to work as a truckdriver because hard physical
exertion was extremely painful for him. He had no other
significant neurologic symptoms except that all movements of
his head, neck and left upper extremity were painful.
On examination, cranial nerves III-XII were unremarkable. On
attempts to move the veteran's head, neck and left upper
extremity, even the slightest movement caused him to wince
and complain of pain in the left neck, shoulder and arm. He
was unable to fully cooperate with attempts to evaluate his
strength. However, there was no atrophy, fasciculation or
abnormal movement present on motor examination of all four
extremities. The strength was normal in the right upper
extremity and in both lower extremities. The left upper
extremity was probably also normal throughout, although the
veteran "let go" because of pain on request to exert
himself. The examiner stated that the basic feeling,
however, was that there was no significant weakness present.
On sensory examination, the veteran reported decreased pain
and temperature perception over the C7 and perhaps
C8 dermatomes on the left side, but that was not absolute.
There was a recorded difference between the left upper
extremity and the right upper extremity. The loss or
decrease of sensation was not in the same location where he
complained of having paresthesias and shooting pains which
involved the C5 and C6 distribution. The examiner stated it
was impossible to raise the veteran's left arm to the
horizontal or above because of pain and he would not let the
examiner move his head or neck more than a few degrees
because of pain. The deep tendon reflexes were two plus and
equal in the biceps jerks and in the radial jerks and the
right triceps was two plus, but the left triceps was barely
present to absent. There was a marked difference in the
triceps jerks. In the lower extremities, the reflexes were
two plus and symmetrical. His gait, station and Romberg were
normal.
The examiner commented that the veteran had severe pain and
appeared to have inflammatory problems with his left neck,
shoulder and arm along with minor neurologic involvement.
The veteran's main problems appeared to be orthopedic. He
did have a decreased triceps jerk and some sensory loss in
the appropriate distribution on the left side with radiating
pain and paresthesias in an adjacent dermatome.
II. Analysis
A 10 percent evaluation is warranted for mild intervertebral
disc syndrome. A 20 percent evaluation requires moderate
intervertebral disc syndrome with recurring attacks.
38 C.F.R. Part 4, Code 5293.
Slight limitation of motion of the cervical segment of the
spine warrants a 10 percent evaluation. A 20 percent
evaluation requires moderate limitation of motion. 38 C.F.R.
Part 4, Code 5290.
Moderate limitation of motion of either ankle warrants a
10 percent evaluation. A 20 percent evaluation requires
marked limitation of motion. 38 C.F.R. Part 4, Code 5271.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
The Board notes that in the case of Fenderson v. West,
No. 96-947 (U.S. Vet. App. Jan. 20, 1999), the United States
Court of Appeals for Veterans Claims indicated that there was
a distinction between a veteran's initial dissatisfaction
with the initial rating assigned following a grant of service
connection in a claim for an increased rating of a service-
connected condition. The Court noted that the distinction
might be important in terms of, among other things,
determining the evidence that could be used to decide whether
the original rating on appeal was erroneous. The Court
indicated that the rule from Francisco V. Brown, 7 Vet. App.
55, 58 (1994) ("Where entitlement to compensation has already
been established and an increase in the disability rating is
at issue, the present level of disability is of primary
importance."), was not applicable to the assignment of an
initial rating for a disability following an initial award of
service connection for that disability. The Court indicated
that, at the time of an initial rating, separate ratings
could be assigned for separate periods of time based on the
facts found--a practice known as "staged" ratings.
In this case, the recent VA examinations have disclosed that
the veteran has some limitation of motion of the cervical
spine; however, as noted on the recent orthopedic
examinations, the restriction of motion in the cervical spine
is no more than slight in degree. Thus, an increased rating
for the cervical spine disability would not be warranted
under the provisions of Diagnostic Code 5290. However, the
veteran's disability is rated under code 5293. He has
complained of pain and tenderness involving the cervical
spine and there is some evidence of neurologic involvement.
However, the veteran is also established as service
connection for a left shoulder condition, currently rated 10
percent disabling and some of the veteran's complaints
involving his left arm and shoulder are clearly related to
the left shoulder condition. The recent neurologic examiner
found that there was only slight neurologic involvement of
the cervical spine, but reported that the veteran was subject
to periods of inflammation which caused severe pain and
resulted in some functional impairment. These findings of
what amount to recurring attacks, when considered in light of
the veteran's complaints reflect the presence of a moderate
intervertebral disc syndrome. The Board therefore concludes
that the cervical spine disability warrants a 20 percent
evaluation under Diagnostic Code 5293. Severe disability so
as to warrant a higher evaluation for the cervical spine
disability has not been demonstrated.
With regard to the veteran's claim for an evaluation in
excess of 10 percent for the left ankle disability, the
veteran reported ankle pain on prolonged standing when he was
afforded the March 1999 VA orthopedic examination. However,
there was a full range of motion of the ankle and there was
no swelling or effusion. X-ray studies showed traumatic
arthritis of the ankle. The examiner commented he believed
the veteran might sustain pain in the ankle in a job that
required prolonged walking or standing and he stated the
veteran's weight bearing should probably be limited to 4 out
of the 8 hours in broken intervals. These essentially
negative findings, and the examiner's conclusion that the
veteran would have some functional impairment after several
hours on a job involving prolonged walking or standing are
consistent with a slight disability. On the basis of the
examination findings and the veteran's statements, the Board
concludes that the current manifestations of the veteran's
left ankle disability are not of such extent and severity so
as to warrant an evaluation in excess of 10 percent for that
condition.
The Board has considered the provisions of 38 C.F.R. § 4.7;
however, the Board does not consider the disability picture
resulting from the veteran's left ankle disability to more
nearly approximate the criteria required for the next higher
evaluation under the applicable rating schedule provisions.
The Board notes that in the case of DeLuca v. Brown, 8 Vet.
App. 202 (1995), the United States Court of Appeals for
Veterans Claims held that consideration must be given to
functional loss due to pain under 38 C.F.R. § 4.40 and
functional loss due to weakness, fatigability, incoordination
or pain on movement of a joint under 38 C.F.R. § 4.45 when
evaluating orthopedic disabilities. The VA examinations have
discussed these factors and indicated the extent to which
they apply to the disabilities at issue, and they have been
noted in each analysis above. For the reasons set out
therein, evaluations of 20 percent for the veteran's cervical
spine disability and 10 percent for the veteran's left ankle
disability are appropriate and consistent with the degree of
functional impairment reported by the veteran and confirmed
by medical examiners.
ORDER
Entitlement to an increased evaluation for a cervical spine
disability to 20 percent is established. The appeal is
granted to this extent. Entitlement to an evaluation in
excess of 10 percent for a left ankle disability is not
established. The appeal is denied to this extent.
ROBERT D. PHILIPP
Member, Board of Veterans' Appeals